NLRB v. Tri-State Stores, Inc.

• Decision Date: 18 June 1973
• Docket Number: No. 71-1563.,71-1563.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TRI-STATE STORES, INC., Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

477 F.2d 204 (1972)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TRI-STATE STORES, INC., Respondent.

No. 71-1563.

United States Court of Appeals, Ninth Circuit.

September 29, 1972.

Rehearing Denied June 18, 1973.

Joseph C. Thackery, Atty. (argued), Paul J. Spielberg, Atty., Marcel Mallet-Prevost, Asst. Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Eugene G. Goslee, Acting Gen. Counsel, NLRB, Washington, D. C., Charles M. Henderson, Director, Region 19, NLRB, Seattle, Wash., for petitioner.

George J. Tichy (argued), Spokane, Wash., Lloyd G. Martinson, Moscow, Idaho, Thomas K. Cassidy, of Basset, Donaldson & Hafer, Seattle, Wash., for respondent.

Before HAMLEY, GOODWIN and WALLACE, Circuit Judges.

WALLACE, Circuit Judge:

Pursuant to § 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e), the National Labor Relations Board (hereinafter "NLRB") has petitioned this Court for enforcement of its order issued against Tri-State Stores, Inc. (hereinafter "Company") on October 1, 1970.¹ The NLRB has ordered the Company to cease and desist from committing unfair labor practices, to offer to reinstate a discharged employee and to bargain with the Union upon demand.² We hold the order of the NLRB is to be enforced.

The Company's department store in Moses Lake, Washington, was the situs of the alleged unfair labor practices. It is one of two stores owned and operated as separate corporations by Doris E. Connelly. The other is located in Moscow, Idaho, about 100 miles away, where Connelly has her office and where the administrative functions of both stores are centered. The Moses Lake store had 41 employees at the time of the alleged violations.

Prompted by Connelly's requiring polygraph tests to stem suspected pilferage, some of the Moses Lake employees held a meeting on September 2, 1969, to discuss this and other grievances. A Teamsters Union representative met with them and later contacted a Retail Clerks Union representative who met with 23 employees the following night. At that meeting, 22 signed cards authorizing the Union to act for them, and 6 more signed cards within a week, for a total of 28.

When the meetings were reported to Connelly, she sent Terri Clevenger (a management consultant), together with a gentleman business friend, to Moses Lake to deal with the situation. During a meeting with employees on September 6, Clevenger remarked that there were "questions coming up about raises," said she "wanted the employees to be happy," and asked if they "had anything bothering them or that they would like to have done." An employee asked if a five-day work week could be substituted for the six-day week and Clevenger replied that she "didn't know why not." Clevenger and the business friend then returned to Moscow and gave assurances to Connelly that, if Clevenger spent further time in Moses Lake, the employees would be "calmed." About this time, the Company posted a notice at Moses Lake that the polygraph tests had been postponed.

There was also testimony that, on September 9 at a meeting of department managers, Clevenger advised that the doors would be closed if the employees unionized. Pursuant to a discussion in that meeting, all department heads immediately solicited the employees to send letters revoking the prior authorization given by the cards. Some employees were told of the threat to close the store. By the end of the day, 35 employees³ wrote letters stating they no longer wished the Union to represent them.

During the second week in September, employees who worked six days a week were rescheduled to five although they continued to work 40 hours. About three weeks later, however, the Company restored the original schedule. In addition, 19 employees received wage increases in their pay checks distributed some time after the middle of September. All but one of those receiving increases had either written a withdrawal letter or had never signed an authorization.

The NLRB affirmed the Trial Examiner's findings (1) that the Company violated § 8(a) (1) of the Act by questioning its employees concerning their union activities, threatening them with closing the store if they did not cease such activity, soliciting them to withdraw their Union authorization cards and increasing their wages and improving their working hours to induce them to defect from the Union; (2) that the Company violated §§ 8(a) (3) and 8(a) (1) of the Act by discharging employee Ilse Iliff because of her interest in and activities on behalf of the Union; and (3) that the Company violated §§ 8(a) (5) and 8(a) (1) of the Act by refusing to bargain with the Union upon request after the Union had obtained authorization cards signed by a majority of the employees in an appropriate unit.

We have reviewed the record as a whole and conclude that there is substantial evidence therein to support the findings of the NLRB. 29 U.S.C. § 160 (e); Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

The Company has especially challenged the finding in relation to the discharge of Ilse Iliff. The Company argues that Moses Lake store manager Ehart had an adequate and independent legal basis for the discharge of Iliff. There is clear evidence in the record of Iliff's insubordination. In front of other employees, Iliff called Ehart a "puppet on a string" and made several outspoken, rather critical, suggestions to Ehart as to how the store should be managed, including a suggestion of pay raises. Iliff also spoke critically of Ehart to her fellow employees and related the "puppet on a string" incident to them.

On the other hand, the apparent reason that Iliff called Ehart a "puppet on a string" was that she felt that Ehart did not have enough authority to do anything about employees' grievances and, therefore, a trip to Moscow by Iliff to speak with Connelly would be necessary. Furthermore, four days prior to Iliff's discharge the office manager for both stores telephoned Iliff, interrogated her about the Union's organizational attempts and asked whether she had signed a Union authorization card. Although the office manager denied any knowledge of such a call, it is well-settled that the Trial Examiner has the responsibility of evaluating the credibility of witnesses and the weight to be given their testimony since he is in a position to observe demeanor and other firsthand indications of truthfulness. See NLRB v. Ayer Lar Sanitarium, 436 F.2d 45, 49 (9th Cir. 1970), and cas...